United States v. Jorge Larios-Montes , 250 F. App'x 965 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 12, 2007
No. 07-11750 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00241-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE LARIOS-MONTES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(October 12, 2007)
Before DUBINA, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Jorge Larios-Montes pled guilty to one count of unlawful transportation of
an illegal alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). He now appeals his
sentence of 18 months’ imprisonment.
Larios-Montes and a codefendant transported 13 illegal aliens in a 13-
passenger van that had been modified to accommodate up to 16 people. The two
defendants had agreed to transport the aliens from California and Arizona to
Alabama, Georgia, and Maryland. At the time the United States Border Patrol
stopped them, Larios-Montes was driving and the codefendant was in the front
passenger seat. In taking the codefendant out of the van, the patrol discovered that
the codefendant had been sitting on a folded knife, positioned in the center of the
seat. The knife was 4-4.5 inches folded, and 8-8.5 inches extended. The two
defendants had previously switched roles as driver/passenger twice during the trip.
Two of the passengers stated that they were afraid, and that they had been
restricted in stopping, eating, and using the bathroom. The van stopped twice for
food during the trip.
On appeal, Larios-Montes argues that the district court clearly erred in
applying an enhancement, pursuant to U.S.S.G. § 2L1.1(b)(5)(C), for possessing a
dangerous weapon. Larios-Montes claims that (1) the knife was not in furtherance
of the crime, and (2) it was not reasonably foreseeable to him that his codefendant
had a knife.
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We review a district court’s factual findings for clear error, and the
application of the guidelines to those facts de novo. United States v. Pham, 463
F.3d 1239, 1245 (11th Cir. 2006) (citation omitted). A factual finding is clearly
erroneous when we are “left with a definite and firm conviction that a mistake has
been committed” after a review of all the evidence. United States v. Rodriguez-
Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004) (quotation and citation omitted).
If a dangerous weapon was possessed while smuggling or transporting an
illegal alien, the guidelines call for a 2-level increase, or an increase to level 18,
whichever is higher. U.S.S.G. § 2L1.1(b)(5)(C). A defendant’s offense level is
determined in part on the conduct of his codefendant when the other’s acts are: (1)
reasonably foreseeable; and (2) in furtherance of the jointly undertaken criminal
activity. U.S.S.G. § 1B1.3(a)(1)(B).
We have not defined when something is “in furtherance” of a conspiracy
under § 1B1.3(a)(1)(B), but we have held, in the context of 18 U.S.C. § 924(c),1
that “furtherance” should be given its plain meaning when it is not defined in the
statute. United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002). There,
we held that the government must prove that “the firearm helped, furthered,
promoted, or advanced the drug trafficking” in order to establish that it was
1
Section 924(c) increases the minimum sentence for an individual who possesses a firearm
“in furtherance of” crimes of violence or drug trafficking. 18 U.S.C. § 924(c).
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possessed in furtherance of the crime. Id. The government must show, through
specific facts, “that the firearm was possessed to advance or promote the criminal
activity.” Id.We have held that it is a factual question whether a co-conspirator’s acts
were reasonably foreseeable, and the government must show “reasonable
foreseeability” by a preponderance of the evidence. United States v. Cover, 199
F.3d 1270, 1274 (11th Cir. 2000). To meet its burden, the government only has to
prove that an act was “a necessary or natural consequence of the unlawful
agreement,” not that the defendant expressly agreed to his codefendant’s act. Id. at
1275 (quotation omitted).
Upon review of the record as a whole, we find no reversible error. At
sentencing, the government proffered the testimony of Border Patrol Agent Matroy
Browder, who was involved in the stop of the defendants. Browder testified as to
the location and length of the knife, the switching of driver/passenger
responsibilities, and the conditions that the passengers were exposed to during the
trip. Upon consideration of this testimony and the record evidence, the district
court made the following finding:
[I]t’s the finding of the Court that . . . it would be reasonably foreseeable
that this defendant knew about the presence of that knife. A person doesn’t
normally sit on a knife unless they want to have it readily accessible. It
was not in the man’s pocket, which indicates to me that he wanted to have
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it where he could get to it fairly soon. He didn’t put [it in] the pocket in
the door, he didn’t . . . put it in the glove compartment. He had it available
to him if he needed it. And under the circumstances where the two were
switching out being driver and passenger, it seems very unlikely that this
defendant would not have known that the other driver, or the person who
was then in the passenger seat, had access to that knife because of the way
it was being transported.
And as a matter of fact it seems most likely to me that whoever was
sitting in the passenger seat was to have had access to that weapon for
whatever control it would have been necessary for had that become an
event. That’s the most likely scenario to me, given the fact that the man
was sitting on the knife that’s a rather large knife.
....
. . . [T]hese two gentlemen were transporting 15 illegal aliens and a
situation may have arisen where they felt the need to protect themselves
either from the passengers or from anybody approaching the van. . . .
[G]iven the entire situation and the fact that the passenger—the codriver—
was sitting on the knife, it is more likely than not that it was foreseeable
that they needed a weapon and that one was present and that he was most
likely aware of it.
(R71-12, 14.)
In light of the need to restrict the incidents of stopping, eating, and using the
bathroom, and the fact that at least two of the passengers professed to being afraid,
it is not a stretch to infer that an intimidating atmosphere was imposed by the
defendants within the van. Given the location of the knife (center of front
passenger seat) and the switching of roles between the defendants as
driver/passenger, we cannot say that the district court was clearly erroneous in
finding that possession of the knife was reasonably foreseeable to Larios-Montes
and in furtherance of the transportation of the aliens. Accordingly, we affirm.
AFFIRMED.
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